8 Mass. App. Ct. 43 | Mass. App. Ct. | 1979
On April 14, 1976, Virginia Brady (wife) was granted a judgment of divorce nisi on the ground of desertion in an uncontested divorce proceeding. The judgment ordered James Brady (husband) to pay $63 per week to the court to be forwarded to the Department of Public Welfare (Department) as alimony and child support. Any amounts not paid were to accumulate and were to attach quasi in rem to the husband’s interest in the parties’ marital domicil, owned by them as tenants by the entirety. The court ordered that, if and when the marital home
Both parties objected to the judgment, and filed appeals.
At the time of the divorce proceedings the wife had been receiving public assistance for two and one-half years. She received $57 per week through the Aid to Families with Dependent Children program, and was earning $54.91 per week through part-time employment. The husband at that time was receiving $58 per week unemployment compensation and was paying $10 per week to the Department for support of his wife and child. The parties submitted a stipulation to the court providing for custody of their minor child, visitation rights, child support, and conveyance of the husband’s interest in their marital home to the wife in lieu of alimony.
The judge advised counsel that he was in favor of having the wife and child continue to live in the marital home but noted that resort should be had to the husband’s substantial equity in the home for support of the wife and child. Were the court to follow the proposed stipulation, "the fellow citizens of James and Virginia would be taxed to have the welfare department ... continue to provide the funds to pay the mortgage, interest, principal, and taxes and the substantial equity which would eventually be realized would go to a party who had contributed nothing thereto.” The judge advised counsel that he knew of no precedent, other than Blitzer v. Blitzer, 361 Mass. 780 (1972), for the order he was about to enter and that he would welcome an appeal by the parties in order that the law might be clarified.
1. However well intentioned the judge’s action may have been, he exceeded his authority in ordering that future unpaid amounts of alimony and child support were to be applied against the husband’s interest in the marital home to secure any amounts advanced by the Department but not reimbursed by the husband. Under G. L. c. 18, § 21, inserted by St. 1969, c. 885, § 12, the Department is subrogated to "rights to support and maintenance of any welfare recipient to the extent of any payments made by the department... ,”
We are not aware of any statutory or other authority granting a Probate Court the power to enter an order establishing, in effect, a lien in favor of the Department on the property interest of a party to divorce proceedings, where the Department is not a party to the action and where it has not instituted any action or proceedings in any court to establish its rights of subrogation. The judge’s reliance on Blitzer v. Blitzer, supra, as authority for the order which he entered appears to be misplaced. In that case the court held that there was no jurisdiction in the Probate Court to enter a personal decree against a nonresident husband requiring him to convey his interest in the marital home to the wife. The Probate Court did nevertheless have the power, by a decree quasi in rem, to subject the husband’s interest in the Massachusetts real
The parts of the judgment which order payments by the husband to be forwarded to the Department, and which order unpaid amounts to accumulate and to attach quasi in rem to the husband’s interest in the marital home to secure the Department must be reversed.
2. The Probate Court’s power to make awards of alimony is completely statutory. See Baird v. Baird, 311 Mass. 329, 331 (1942). General Laws c. 208, § 34, as appearing in St. 1977, c. 467, governs a Probate Court’s power to order alimony and to make an assignment of property in divorce proceedings, and requires a judge to consider all the factors enumerated therein. The judge must make findings which clearly indicate that he has weighed all the statutory considerations. Bianco v. Bianco, 371 Mass. 420, 423 (1976). Putnam v. Putnam, 5 Mass. App. Ct. 10, 14-16 (1977), S.C., 7 Mass. App. Ct. 672, 674-675 (1979). Moran v. Moran, 5 Mass. App. Ct. 787, 788 (1977). On the record before us, there is no indication that the judge did so.
So much of the judgment as awards a divorce to the wife is affirmed. The balance of the judgment is reversed, and the case is remanded to the Probate Court for further proceedings not inconsistent with this opinion including a new hearing on the issues of alimony and child support. The Department is to be given notice of all further proceedings in this action.
So ordered.
The Department has submitted a brief as amicus curiae.
The marital home had been purchased by the parties in March of 1972 for $22,900 with a down payment of $4,750, and they had executed a first mortgage of $18,300. At the date of the divorce hearing, the fair market value of the property was $24,000, and the principal balance owing on the mortgage was undisclosed.
General Laws c. 18, § 21, inserted by St. 1969, c. 885, § 12, and as in effect at the time of the divorce proceeding, provided that:
"The department shall be subrogated to the rights to support and maintenance of any welfare recipient to the extent of any payments made by the department to such recipient. If no probate court order is outstanding, the department may, in its own name, initiate nonsupport proceedings in the appropriate probate court. The department shall institute contempt proceedings under the provisions of section thirty-four A of chapter two hundred and fifteen in the name of the recipient in the event that any order of support made by the probate court concerning any recipient under a petition for separate support*46 or a libel for divorce has not been complied with. If no probate court order is outstanding, the department shall in its own name apply for a complaint and initiate nonsupport proceedings in the appropriate district court under section one of chapter two hundred and seventythrs6,
See now G. L. c. 18, § 21, as appearing in St. 1977, c. 925. The 1977 act amended the second sentence of the statute by authorizing the Department to seek to obtain a Probate Court order on any outstanding libel for divorce or petition for separate support, to the extent of any aid which may have been authorized by the Department, and added a provision authorizing the Department to seek to obtain modification of any existing court order, to the extent of any aid which may have been authorized by the Department.